Monday, May 26, 2003

Incumbent justices on Texas' 14 intermediate appellate courts across the state took 72 percent of their campaign money from lawyers and firms to help keep themselves in office, according to a yearlong study by a watchdog group.

Firms, Lawyers Give Generously to Texas Judges

John Council and Kelly Pedone, Texas Lawyer05-26-2003

Incumbent justices on Texas' 14 intermediate appellate courts across the state took 72 percent of their campaign money from lawyers and firms to help keep themselves in office, according to a yearlong study by a watchdog group.

The report, titled "Lowering the Bar," and released by Texans for Public Justice on May 21, focuses on the 73 justices who sat on intermediate appellate benches as of Jan. 1, 2003, and found that they raised about $4.9 million from plaintiffs and defense firms and individual lawyers between 1997 and 2002.

"The judiciary is dependant on the Bar, who have a direct economic interest in the outcome of cases," Craig McDonald, director of TPJ, says of the report. "It tells us that we need to change our judicial selection system."

The study also found that the total percentage of campaign money that the justices receive from lawyers and firms is on the increase. Justices took 61 percent of their total campaign donations from lawyers in the 1996 election cycle - a percentage that increased to 76 percent in the 2002 election cycle. TPJ's most recent study on the Texas Supreme Court showed that the incumbent high court justices took 48 percent of their campaign contributions from lawyers from 1994 to 1998.

"That number is escalated when you go down the food chain," McDonald says, noting a heavier percentage of lawyer donations to lower appellate courts.

The report and its statistics came as no surprise to several intermediate appellate justices and their lawyer campaign donors. The reason that the appellate justices take so much of their campaign money from lawyers is because few people other than attorneys are interested in judicial elections, several justices say.

"What I'm finding out is that people are caring less. Not attorneys, but the general population," says Richard Barajas, chief justice of El Paso's 8th Court of Appeals. "There's nothing sexy about an incumbent that's been on the bench for 12 years."

Barajas, according to the TPJ report, received 100 percent of his $4,800 campaign donations from lawyers when he ran unopposed in 1996 and 90 percent of his $31,133 in campaign donations when he ran in a contested race last year.

Even though he's the highest-ranking state judge in El Paso, it's hard to find people in his hometown who know what he does for a living, Barajas says.

Barajas says he's not influenced by the money he takes from lawyers, but says he's bothered "by the perception that I would."

"Those are perfectly legitimate questions," he says. "And if more people would ask, we'd do something about it."

Lawyers and Justices

The report found that Houston's Vinson & Elkins was one of the most generous firms with appellate justices, giving them a total of $172,000 in campaign contributions since 1996.

"Under our system, you need money to run a campaign, which can become expensive," says Vinson & Elkins managing partner Harry Reasoner. "I believe the system works because [judges] are supported across the bar."

Vinson & Elkins led the way in contributing to intermediate appellate court races followed by Fulbright & Jaworski with $97,580, according to the report. Although the report does not list the exact amount the firms gave to each judge, it names Scott Brister, chief justice of Houston's 14th Court of Appeals, as the favorite campaign donation recipient of both those firms.

Because those are two of the largest firms in Houston, it stands to reason that they would be the largest contributors, says Brister, who received 85 percent of the $62,236 in his campaign coffers from firms for his 2002 campaign. "I have no idea why they like me so much," he says.

The report showed that Houston has one justice who is the least dependant on lawyer money. Tim Taft, a justice on the 1st Court of Appeals, raised no money from lawyers in the $5,222 he banked for his 2000 campaign.

Taft says he made the decision in 1994 to limit the number of individual contributions to $50 during the primary and $200 in the general election. And in 2000, when he was seeking re-election, he decided not to accept any money from attorneys who might appear before him. He raised $5,222, according to the TPJ study, and did not accept any funds from attorneys.

Taft used that policy again when he ran for the Texas Court of Criminal Appeals. He was unsuccessful in the statewide bid.

"I kind of bit off my nose there and got less money," he says. Still, he says he was pleased that he came in second in the Republican primary runoff. CCA incumbent Tom Price beat him.

In Dallas, the report shows that some appellate justices also were heavily dependant on lawyer money on both sides of the bar. For example, 5th Court of Appeals Justice Kerry Fitzgerald received 95 percent of his $36,645 in campaign money from lawyers in 2000, a year when the Dallas defense firm Haynes and Boone was one of his top donors. Fitzgerald received 99 percent of his $31,570 in campaign money from lawyers in 2002, when the Dallas plaintiffs firm Baron & Budd was one of his top donors.

Fitzgerald says he's not even aware who his top donors are.

"I wouldn't have ever have known, if you hadn't told me. That is not my focus," Fitzgerald says. "When you send out a request for funds, you hope that people who think you have integrity and experience would donate to your campaign."

Fred Baron, a partner in Baron & Budd, says his firm wanted to see Fitzgerald keep his job because he's a qualified jurist. Baron says he's not aware if his firm has any cases pending before the 5th Court.

"Quite frankly, the system is flawed," Baron says. "But as long as we are under this system, it's important that we re-elect quality judges to the bench."

George Bramblett, a partner in Haynes and Boone who chairs the firm's political action committee, says firm contributions are the only way to help ensure quality justices keep their seats.

"We tend to give to incumbents," Bramblett says. "And I regard it kind of as a United Way contribution."

Changing the System?

While watchdogs behind the report say lawyers donating heavily to the justices they appear in front of is indicative of a need for election reform, it's not clear whether that will happen anytime soon.

Texas Supreme Court Chief Justice Tom Phillips has championed the cause for switching Texas' 153-year-old system of electing judges to an appointment/retention system. But a bill that would do just that appears to be stuck in the Legislature.

SJR 33, a bill which would allow the governor to appoint all judges, subject to confirmation by the Senate, and then stand for retention elections by the voters at the end of their terms, was passed by the full Senate on April 28. But the bill has not moved past the House Committee on Judicial Affairs since April 29.

Some Republican leaders strongly oppose appointment/retention elections for judges, including Texas Republican Party Chairwoman Susan Weddington, who has taken Phillips - the longest serving Republican on the Supreme Court - to task for supporting the measure.

Republicans currently hold all of Texas statewide elected offices, and judicial election reform has been a divisive issue within the GOP, says Cal Jillson, a political science professor at Southern Methodist University.

Jillson says some Republican leaders like the judicial election system just the way it is - especially because their party has made advances all over the state in judicial races. Other Republicans believe that an appointed system would help them keep GOP judges in areas such as Dallas, where the trend is to vote Democratic, as long as the Republicans hold the governor's office.

And it will be tough to get Republicans and Democrats to agree on such a major issue that effects both parties' hold on the judiciary, Jillson says.

"You do hear Republican Party insiders talk about the need to move to an all appointed judiciary," Jillson says. "But I think when the discussion does begin, that the Democrats would want to make sure it's a nonpartisan board making the appointments rather than the governor or elected officials."